Points of law: Negligence Flashcards
Tort law
A civil wrong arising from an act or failure to act, independently of any contract.
4 Principles of Negligence:
On the balance of probabilities:
-The defendant owed a duty of care to the claimant.
-The defendant breached the duty of care.
The defendants breach caused the damage.
-The damage suffered by the claimant was not too remote.
Donoghue v Stevenson (1932)
Every person owes a duty of care to their neighbour who could be anyone reasonably foreseen to be injured by their act or omission.
3 Stage test (all must be met)
-Was the harm or loss caused reasonably foreseeable?
-Was there a sufficient relationship of proximity between the claimant and the defendant?
-Was it ‘fair, just and reasonable’
Margereson v JW Roberts (1996)
There is more likely to be a duty of care if the harm or loss caused was reasonably foreseeable.
Evans v Triplex Safety Glass Company Ltd. (1936)
Manufacturers owe a duty of care not only to the immediate purchasers but also to their end-users or consumers of their products.
Home office v Dorset Yacht Co. (1970)
One person is under no duty to control another unless there is a special duty of care.
Topp v London Country Bus (South West) Ltd. (1993)
One person does not have a responsibility for the acts of a third party.
Marc Rich v Bishop Rock Marine (1995)
‘Fair, just and reasonable’
Weller v Foot and Mouth Research Institute (1966)
Pure economic loss is not recoverable.
Hedley Byrne v Heller (1964)
Pure economic loss from negligent misstatement is recoverable.
White v Jones (1995)
Pure economic loss from negligent omission is recoverable.
Nettleship v Weston (1971)
The defendant must act with the degree of care and skill expected from a reasonable and prudent person in the same circumstances.
Orchard v Lee (2009)
A child is only held to the standard of a reasonable child of his age rather than a reasonable adult.
The lady Gwendolyn (1965)
Skilled defendants are not judged by a higher standard.
Bolam v Friern management (1957)
The defendant must act with the degree of care and skill expected from other professionals in the same field.
Bolton v Stone (1951)
A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occuring.
Paris v Stepney Borough Council (1951)
A reasonable person is expected to take greater steps if the seriousness of harm is particularly great.
The Wagon Mound No2. (1967)
If the seriousness of harm is particularly great, even though it is unlikely but the cost of reducing them is low, then a reasonable person would mitigate the risk.
Latimer v AEC Ltd. (1953)
An employers duty to provide a safe working environment does not extend to eliminating all risk entirely, but rather to take reasonable precautions to mitigate those risks to a reasonable extent.
Watt v Hertfordshire County Council (1954)
It is not a breach if a defendant takes reasonable risks in an emergency situation.
The Bank of Montreal v Gresham (1930)
If the defendant acted in accordance with general practise, the defendant was not negligent. However the neglect of duty does not by repetition cease to be negligent of duty.
Factual Causation
There must be a factual link between the claimant and defendant in the chain of causation.
The ‘But for’ test
The claimant must prove that negligence caused the injury or loss sustained.
Barnett v Chelsea and Kensington Hospital Management Committee (1969)
If the damage would not have happened ‘but for’ the action of the defendant then it is the cause of damage.
Wilsher v Essex Area Health Authority (1988)
In cases of multiple potential causes of harm, claimants must establish that the defendants actions were the probably cause of harm or a significant contribution to the harm suffered.
“Balance of probabilities”
‘Novus Actus Interveniens’
‘A new intervening act’
- An act or event that breaks the casual connection between a wrong or crime committed by the defendant and subsequent happenings
-The new event relieves the defendant from the responsibility for the happenings.
‘Novus Actus Interveniens’ (A new intervening act) - The three types
- Natural event
- Act of a third party
- Unlawful/unreasonable conduct by the claimant.
The Carslogie (1952)
Defendants cannot be held liable for loss that was sustained as a result of a natural event.
Baker v Willoughby (1971)
If a third party breaks the chain of causation then the defendant is not liable.
McKew v Holland (1969)
If unreasonable conduct breaks the chain of causation then the defendant is not liable.
The Wagon Mound No.1 (1967)
There is only negligence if the damage is not too remote. (has to be foreseeable)
The “Egg-shell skull” rule.
- You must take your victim as you find them
- If a victim has a susceptibility to weakness or abnormality (a thin skull or weak heart) and suffers a greater injury as a result, the defendant will be liable to the full extent of the injuries
- …even if it is greater in extent and of a different kind to that foreseeable.
Smith v Leech Brain (1962)
Employers are liable for all the consequences to their negligence, even if a pre-disposition to the injury makes the outcome worse than usual.
Jones v Live Quarries (1952)
A person is guilty of contributory negligence if he ought to have foreseen that if he did not act as a reasonable man he might get hurt.
Pitts v Hunt (1990)
You cannot have 100% contributory negligence
Capps v Miller (1989)
If you breach a statutory regulation then there is contributory negligence.
Limerick v French (1993)
The burden is on the defendant to prove that the claimant knew the defendant was unfit to drive.
Gough v Thorne (1966)
A child is generally not guilty of contributory negligence.
Smith v Baker (1891)
Even if you consent to work, you do not consent to a lack of care.
ICI v Shadwell (1965)
An employer is able to rely on volenti non fit injura as a complete defence to negligence when the employees act in deliberate neglect of the employers instructions and in knowledge of the associated risks.
Morris v Murray (1990)
If you willingly put yourself in harms way, then you cannot claim negligence.
Ashton v Turner (1981)
‘Ex turpi causa’ is not a defence but is a bar to an action.
Pitts v Hunt (1990)
If you act ‘Ex turpi causa’ you cannot claim negligence.
Revill v Newbury (1996)
‘Ex turpi causa’ of someone else is not a defence for your own illegal action.
‘Ex turpi causa’ meaning
“from a dishonourable cause an action does not arise”
(The claim would be defeated and not reduced in damages)
Failure to act:
No duty for failing to act e.g saving someone in water.
3 Defences for negligence:
1.Contributory negligence
2.Volenti Non Fit Injuria
3.Ex Turpi Causa
Volenti Non Fit Iniuria - “to a willing person, injury is not done”
If someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party.
‘one who has invited or assents to an act cannot when suffers from it complain of it as a wrong’
This is not the same as consent but is more like a voluntary assumption of the risk. If successful it will be a complete defence for the defendant.
